Sunday, March 18, 2018

Even If McCabe Committed Wrongdoing, He Was Likely Fired for "This Russia Thing"

by Michael Dorf
A number of commentators who are not simply apologists for Donald Trump have been arguing that the firing of Deputy Director Andrew McCabe by (supposedly recused) AG Jeff Sessions cannot have been a simple political hatchet job, because it was based on a recommendation of the Department of Justice Inspector General, a nonpartisan professional who was appointed to his current position by President Obama. I think they're making a straightforward logical error.

McCabe contends that he did nothing wrong. Maybe he's right about that. Let's assume for the sake of argument, however, that he's wrong. In other words, let's stipulate that if and when the report of IG Michael Horowitz is made public, it contains smoking-gun evidence that McCabe committed the wrongs that have been publicly alleged and that these are firing offenses, even for someone who is barely a day away from retiring with full benefits. Nonetheless, it is possible -- indeed, given Trump's very public campaign to discredit the Mueller investigation and anyone who could aid it, it is likely -- that the evidence contained in the IG's report was not the actual reason McCabe was fired.

The firing of James Comey closely parallels McCabe's firing.

Deputy AG Rod Rosenstein wrote a letter detailing how Comey's mishandling of the investigation of Hillary Clinton's emails--especially his public comments on the investigation--was a serious breach of policy warranting dismissal. Trump then fired Comey, initially claiming that he did so based on Rosenstein's report. But that was obviously just a pretext. As Trump himself soon boasted, he would have fired Comey without the Rosenstein recommendation. Why? Because of "this Russia thing."

Likewise, IG Michael Horowitz prepared a report detailing how McCabe's mishandling of the investigation of Hillary Clinton's emails--especially his authorization of comments to the media on the investigation--was a serious breach of policy warranting dismissal. Sessions, who had good reason to fear that Trump would fire him if he did not act against McCabe, then fired McCabe, claiming that he did so based on Horowitz's report. But that is likely just a pretext. Trump hasn't yet publicly boasted about it quite so explicitly as he did with Comey (although he has come close), but the most logical explanation for McCabe's firing--even assuming that he was fireable--is "this Russia thing."

11 comments:

Lawfare had an entry counseling us to be agnostic about the firing but still citing the timing and Trump's reaction as red flags. This being a major reason people are calling foul, it's most of the ballgame in my view. Yes, I am inclined to agree this was a result of bad motives.

Just Security also argued that Sessions' firing broke his promise to Congress to be recused. So, when Sessions questioned McCabe's honestly, takes one to know one, I guess.

The emphasis by certain commentators on IG Horowitz as "a nonpartisan professional who was appointed to his current position by President Obama." might be construed by some as Horowitz's "revenge" for McCabe's paving the way to swing the 2016 election to Trump. Obviously Trump is not defending "crooked Hillary." As to Comey's firing earlier, A.A.G. Rosenstein's recommendation addressed what Comey had done publicly that hurt Clinton shortly before the 2016 election. Why, Trump may qualify for a "Profile in Courage" award for defending his rival against improper public acts by Comey and McCabe. Nah. It was always, in the manner of a famous Brady [not Tom], "RUSSIA, RUSSIA, RUSSIA!"

By the Bybee [expletives deleted despite Gina], I anticipate a Trump tweet later today congratulating Putin on his electoral mandate.

Ruth Marcus at WaPo had a recent column on such NDs. If the late George Carlin were still with us [I miss him], we might expect a "Hippy, Dippy" political weather (whether?) report.

Query: Should the media, in dealing with current and former Trump White House officials inquire into whether they have entered into NDAs? I understand the Executive is not subject to FOIA requests. Can Congress or Special Counsel Mueller issue subpoenas for any such NDAs?

And yes, Trump's actions were all about TrumPutin. He's messing his Depends, and we all know it. Let's at least dispense with the obvious.

If we gave Sessions credit for cleverness, his play isn't half-bad. Were he to refuse to fire McCabe, his head would be on the chopping-block. He gets replaced by Pruitt, who can step in immediately because he has already been run the confirmation gauntlet. Pruitt leans on Rosenstein ... who either leans on Mueller or gets axed.

According to the WaPo, Sessions recused himself from all matters arising from the 2016 campaign. Assuming that the incident in question has something to do with how the HRC investigation was conducted, he couldn't be the fair and impartial decision-maker that McCabe was entitled to. He fools Trump into thinking that he did his master's bidding, knowing all the while that McCabe would win his DP challenge.

Reminds me of a sub-plot from a Harry Potter movie.

Still, the "politics voids everything" argument would seem to be a fairly thin thread. Everything in DC is driven by politics; assuming that the IG report wasn't infected by politics, Trump has a pretext for taking action. Though Trump is loyal to no one, he demands an absolute loyalty from subordinates; vindictiveness is a dog-bites-man story. But it could have happened without Russia.

The idea that Trump's (stipulated, herein) animus toward Hispanics precludes him from abolishing DACA when a Hispanic President could have done so is fifty shades of daft. By the same token, one can argue that the Take Care Clause imposes a fiduciary duty on POTUS, but one wonders how far that obligation goes in a pretextual firing.

Trump's tweet to Putin: "Congratulations on your reelection to your second term as President of Russia with your 'Spirit of '76' victory on your quest to 'Make Russia Great Again.' It has been reported that your voters were inspired by my election in 2016. I'm glad to return the favor."